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Misadventures in Subjecthood

Published on September 29, 2010        Author: 

Professor José Alvarez is Herbert and Rose Rubin Professor of International Law at New York University School of Law and Special Adviser on Public International Law, Office of the Prosecutor, International Criminal Court. He is the immediate past President of the American Society of International Law

Editor’s Note: This piece is cross posted from where Professor Alvarez is guest blogging this week. We are delighted to have Professor Alvarez on EJIL:Talk! and would recommend that readers view his other posts on Opinio Juris

As a member of the U.S. State Department’s Advisory Committee on International Law, I was asked to give my reactions to the International Law Commission’s release, on first reading, of a set of proposed articles on the Responsibility of International Organizations. (For the ILC’s report containing these draft articles and commentaries, see here). I was probably asked to undertake this task given my prior interest in these matters (see my 2006 speech to the Canadian Council of International Law, “International Organizations: Accountability or Responsibility?”).

As my memorandum produced for the Advisory Committee meeting on June 21st indicates (see my memo on the “ILC’s Draft Articles on the Responsibility of International Organizations”), time has not ameliorated my concerns about the direction of the ILC’s work. On the contrary the newly completed set of 66 articles heightens my worries that, on this occasion, the ILC’s experts have opted to alter their normal ratio of codification vs. progressive development. In this case, the latter has vastly overtaken the former. In my view, the ILC’s latest effort is likely to encounter considerable resistance where it matters the most, among states. (Of course, my memo reflects my own views and do not necessarily reflect those of the rest of the Advisory Committee or of the U.S. State Department.)

There is scarcely any doubt that the accountability and responsibility of international organizations (henceforth “IOs”) is among the hottest topics in public international law. Scandals involving the UN’s oil-for-food, the actions of UN peacekeepers, the sexual harassment of UN employees, and the (in) actions of the UN Security Council in too many sites of atrocity to mention have kept the issue on the front burner for some time. Accountability concerns also help to explain the proliferation of inspection panels in international financial institutions and have given rise to a number of high profile cases before European courts. Political scientists and legal scholars have repeatedly turned to the question, proposing a variety of solutions, extending from political “checks and balances” among institutional organs to more familiar approaches to control or supervise the discretion of agents drawn from principal-agent theory. (See, e.g., Ruth W. Grant and Robert O. Keohane, “Accountability and Abuses of Power in World Politics,” 99 Am,. Pol. Sc. Rev. 29 (Feb. 2005); Karen Alter, “Agents or Trustees?”)  From a legal standpoint, the difficulties of turning to courts – national or international – to impose liability on an IO such as the UN are familiar. National courts, including those in the United States, usually recognize the immunity of IOs under binding treaties, such as the UN Convention (which grants the UN absolute immunity) or domestic laws. Comparable immunities make it difficult for claimants, even IO employees victimized by their superiors’ sexual harassment, to secure a judicial remedy against IO officials – except within the internal mechanisms provided by the organizations themselves. (See, e.g., Mendaro v. World Bank, 717 F.2d 610 (D.C. Cir. 1983). But see August Reinisch, “The Immunity of International Organizations and the Jurisdiction of their Administrative Tribunals,” 7 Chinese J. In’tl L. 285 (2008) (noting a trend among a small number of national courts to withdraw immunity where needed to avoid a denial of justice).) International courts rarely even have jurisdiction to consider such questions since only states can be parties to contentious cases before the ICJ, and IOs are not even capable of joining instruments such as the European Convention on Human Rights. The rare example where an IO can be regularly sued in court – suits against EU institutions within the European Court of Justice – suggest how rarely the question can come up as the European Union, in the views of most, is probably sui generis, belonging neither to the genus of international organization nor sovereign state.

The prospect of using a court to secure a remedy against members of an IO has come up somewhat more frequently. Some European courts have suggested that such liability might be possible, for example, based on the principle of abuse of right, estoppel or unclean hands. (See, e.g., Waite and Kennedy, Application No. 26083/94, European Court of Human Rights, 18 Feb. 1999, ECHR 13, 116 ILR 121, 134.) Essentially the idea is that states should not be able to undertake action through an organization that would be illegal or wrongful if committed by any of them individually – as under human rights treaties – and that on such occasions courts should pierce the IO veil and render states (or particular members) liable. But these suggestions have been mostly relegated to dicta. For the most part, rendering states liable for their actions as members of a global IO such as the UN have been resisted by scholars and understandably, by states themselves. (See, e.g., Institut de Droit International, The Legal Consequences for Member States of the Non-fulfillment by International Organizations of their Obligations toward Third Parties, Session of Lisbonne (1995).)

What this means is that but for instances involving European institutions, rare cases where IOs have assumed territorial responsibilities (as in Kosovo), and the special case of UN peacekeepers – for whom the UN has accepted responsibility historically – the responsibility of IOs has been a topic for academic speculation but relatively little practice. The combination of organizational immunities (qualified or absolute) and absence of judicial (or other) forum with jurisdiction to hear complaints has made the suggestion — drawn from the ICJ’s affirmation of “legal personality” for the UN in the Reparation Case that like all other subjects of international law, IOs have rights and responsibilities — an intriguing question for scholars but not one that not engaged the attention of many practitioners or judges. This is, of course, very different from the position of the leading subject of international law, states, for whom the enjoyment of privileges and immunities has not been the end of the story. Given their reciprocal needs vis-à-vis each other, states have generally recognized that they are not immune from responsibility for their internationally wrongful acts and that their mutual responsibilities embrace, as was recognized by the ILC’s Articles of State Responsibility, diverse means — from apologies to countermeasures to financial liability. Accordingly, when the ILC turned its attention to that topic, its nearly multi-decade-long effort involved far more codification of the abundant practices of states and courts than progressive development. The last only occurred on the margins of enumerating the black letter rules for which the ILC found real world support.

With respect to the IO responsibility project, the ILC was not hindered by the absence of practice. It bravely (rashly?) undertook to delineate rules with respect to not only IOs, but with respect to states in connection with acts that they commit within IOs. (At a minimum, truth in advertising would suggest that the ILC re-title its effort, “articles on the responsibility of IOs and with respect to states in connection with their acts within IOs.” Such an awkward mouthful has not hindered other ILC efforts in the past.) Read the rest of this entry…


Technical Problems

Published on September 27, 2010        Author: 

We experienced some technical difficulties yesterday, due to which the blog was inaccessible for the whole day. Our apologies to the readers.

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ESIL Research Forum in Tallinn, Estonia in May 2011

Published on September 20, 2010        Author: 

After the excellent recent conference in Cambridge, the next event of the European Society of International Law will be the 4th ESIL Research Forum, to be held on 27-28 May 2011 in Tallinn, Estonia. The call for papers is here. The deadline for the submission of abstracts for the forum’s 15 panels is 15 December 2010, while the selection will be made in January 2011. A further selection of the papers presented will be published in the 2012 issue of the Baltic Yearbook of International Law (Brill/Martinus Nijhoff). A limited number of scholarships to cover travel costs will also be available.

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The Hamburg Tribunal Heats Up? Is ITLOS now in Business?

Published on September 15, 2010        Author: 

The International Tribunal for the Law of the Sea (ITLOS), which is based in Hamburg, is holding hearings this week in  advisory proceedings before that Tribunal. The case concerns Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the International Seabed Area  and the request for the advisory opinion was submitted to the Seabed Disputes Chamber of ITLOS by the International Seabed Authority. The request represents the first advisory proceedings before ITLOS and the first case before the Seabed Disputes Chamber. The oral proceedings are the first before ITLOS in 3 years (the last being in 2007 and the last one before that was in 2004)!

In 1991, Keith Highet who argued many cases before the International Court of Justice wrote a brief comment in the American Journal of International Law (Vol. 85, No. 4 (Oct., 1991), pp. 646-654) noting how the ICJ had become busier than ever in the years immediately following the Court’s judgment in Nicaragua case. The title of this piece is adapted from his piece (The Peace Palace Heats Up: The World Court in Business Again?). The situation that in ITLOS today is no where near the same as that in the ICJ in the early 1990s but I simply wish to note that having been in the doldrums for much of its existence since it was set up in 1996. The Tribunal was created by the UN Convention on the Law of the Sea (UNCLOS) as one (of a number of means) of settling disputes under the UNCLOS. Except in one respect, it has not received much attention from potential users and very few cases have been referred to it. However, at this point in time there are 2 cases on the docket of ITLOS!! Apart from the advisory proceedings there is also a contentious case on its docket. This is the Dispute concerning delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal submitted to the tribunal in December 2009. Two cases is not much cause for celebration but these are two cases received less than 6 months apart. Is the Tribunal now in business?

Apart from requests for provisional measures and request for prompt release of vessels (the latter is the one respect in which ITLOS has received some attention from users), ITLOS has only previously had one case submitted to it on the merits. This was the Saiga Case (St Vincent and the Grenadines v. Guinea) submitted to ITLOS in 1998. I had just started out as a full time academic at the University of Nottingham and I acted as an adviser and assistant to Richard Plender QC who was counsel to St Vincent. I was involved in drafting some of the submissions to the tribunal and never imagined that ITLOS would not hold oral hearings on the merits of a dispute for another decade!  In that time, there has been no shortage of law of the sea disputes.

The dispute settlement provisions of UNCLOS (Part XV) provides for compulsory adjudication but gives parties a choice of procedures. The default choice (i.e the option to be pursued where no specific choice is made or where parties have chosen different procedures) is international abitration but parties may also use the International Court of Justice or ITLOS. Although more States have chosen ITLOS than any other option, States have refrained from referring  law of the sea disputes to ITLOS. I think that there have been 6 arbitrations initiated under UNCLOS, including an arbitration between Bangladesh and India initiated at the same time as the ITLOS proceedings before Bangladesh and Myanmar. There have also law of the sea cases before the ICJ in the period since ITLOS was created. Failure to refer cases to ITLOS suggests that States perceive disadvantages with that Tribunal when compared with the alternatives. Perhaps its biggest disadvantage is that it is untried and untested. States have some idea what they will get with the ICJ. With arbitration states pick the arbitrators and have some control over the process and this may give some comfort to States. Whether ITLOS continues to generate business might well depend on how it is perceived as performing in the 2 cases currently on its docket.

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Questioning the Statehood of the Vatican

Published on September 15, 2010        Author: 

The Pope will begin a State visit to the UK on Thursday Sept 16. In anticipation of this event, some are using the occasion to highlight the tragedy concerning the sexual abuse of children by catholic priests around the world and the failure of the catholic church to deal with this scandal appropriately. As was discussed on this blog earlier this year there were calls for the Pope to be arrested on his visit to Britain and to be tried at the International Criminal Court for crimes against humanity. As Marko and I pointed out the time, there are two significant obstacles to such a prosecution: (i) the Pope is a serving head of State with immunity from arrest and prosecution in other States (see my earlier post) ; and (ii) it would be difficult to argue that the crimes in question were committed ‘as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack’, under the chapeau of Art. 7 of the Rome Statute (see Marko’s post).

Those leading the charge in the calls for the prosecution of the Pope and in the more general campaign against the Papal visit include Geoffrey Robertson QC, a leading English barrister who was a Judge at the Special Court for Sierra Leone and Oxford Professor Richard Dawkins. A central part of that campaign is now a call for non-recognition of the Statehood of the Vatican. It seems that this non-recognition is regarded by the campaigners as important at two levels.

First of all, if the Vatican is not regarded as a State then both the Vatican and the Pope will be open to proceedings in national courts around the world. This is becaue both the Pope and the Vatican will lose the immunity international law accords to States and their serving heads of State. Geoffrey Roberston is the champion of this strategy. He has a recent article in the New Statesman in which he continues to argue against the Statehood of the Vatican. While reognising the widespread international recognition of the Vatican he says:

“that the Holy See is capable of having diplomatic relations with other states does not necessarily prove that it is a state itself, andsome international lawyers have pointed out that it lacks people, territory and other qualifications necessary to be judged objectively as a state in international law. If they are right, the Pope would not be “head” of a state and could be sued for the negligence in relation to the traffic in paedophile priests, which happened on his watch over the 24 years when he ran the CDF.”

I don’t know which international lawyers he is referring to but Robertson’s arguments about how Statehood is created are erroneous. The Vatican fulfills the criteria for Statehood in international law (despite its tiny size) and this is the view of leading international lawyers. I refer readers back to my earlier post where I deal with the arguments.

Dawkins appears to have taken a different tack. He no longer argues that the Vatican is not a State but now seems to argue that the Vatican should be derecognised and its Statehood somehow taken away. Read the rest of this entry…


Lord Bingham Passes Away

Published on September 12, 2010        Author: 

I am sorry to report that Tom Bingham, the former senior law lord, has died Saturday, aged 76. He was on any account the leading judge of his generation – probably, in the words of Philippe Sands writing today in the Guardian, ‘the greatest English judge of the modern era.’ In particular, his contribution to the implementation of human rights and of international law generally in English courts has been immense. He was President and Chairman of the British Institute of International and Comparative Law, and indeed BIICL had recently opened the new Bingham Centre for the Rule of Law. A sad day for our profession.

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DOMAC Conference in Amsterdam

Published on September 11, 2010        Author: 

Our readers, especially those living in The Netherlands, might be interested in attending the forthcoming DOMAC conference in Amsterdam, to be held on 30 September and 1 October. DOMAC is an EU-funded joint project of Reykjavik University, University of Amsterdam, Hebrew University and University College London, and focuses on the actual interaction between national and international courts involved in prosecuting individuals in mass atrocity situations. Readers can find more about it here. The theme of the conference itself is the impact of international criminal procedures on domestic criminal procedures in mass atrocity cases, and the program is available here.

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Joan Donoghue Elected to ICJ

Published on September 10, 2010        Author: 

The United Nations General Assembly and Security Council has elected Joan Donoghue, from the United States, to the International Court of Justice (ICJ) (see here). Joan Donoghue will replace Thomas Buergenthal who resigned from the Court with effect from last week. Ms Donoghue is currently Principal Deputy Legal Adviser at the United States’ State Department and has spent most of her career working for the US government. As previously discussed on the blog, Ms Donoghue’s election to the ICJ means that there are now (for the first time) two women judges on the Court with Xue Hanqin of China elected to the Court in June. Both women will take the oath of office next Monday prior to the commencement of oral hearings in the preliminary objections phase of the Georgia v. Russia (Application of the Int. Convention on the Elimination of Racial Discrimination Case).

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Case Note on Sejdic and Finci

Published on September 6, 2010        Author: 

Our readers might be interested in a case note that I have just posted on SSRN on the Sejdic and Finci v. Bosnia and Herzegovina case before the European Court of Human Rights, which I blogged about before. It is forthcoming in the next issue of the American Journal of International Law, and here’s a very brief abstract:

This case note analyzes the Sejdic and Finci v. Bosnia and Herzegovina case decided by the Grand Chamber of the European Court of Human Rights on 22 December 2009. This was the first case in which the Court applied the far-reaching general prohibition of discrimination in Protocol No. 12 to the European Convention, and did so with regard to a politically volatile situation of electoral discrimination based on ethnicity in a post-conflict society – discrimination that was in fact institutionalized in order to end a war. Likewise, as the implementation of the Court’s judgment requires an amendment to the Bosnian Constitution, the case poses significant compliance challenges, which are also likely to arise in a number of other cases currently pending before the Court. All of these issues make this a case deserving of continuing attention.

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UN Secretary General Sets Out Options for dealing with Piracy off Somalia

Published on September 3, 2010        Author: 

The United Nations Secretary General has recently submitted a report to the Security Council in which he sets out 7 options for dealing with piracy off the coast of Somalia. The incidence of piracy off the coast of Somalia continues to be very high.

“7. … The number of attacks off the coast of Somalia has steadily increased since 1991, and over the past two years has increased from 111 vessels attacked in 2008 to 217 vessels attacked in 2009. . .  There were 30 attacks during the first quarter of 2010. According to the United Nations Office on Drugs and Crime, the pirates operate from around 70 camps on beaches on the Somali coast, which is approximately 1,800 miles long. Their methods have become increasingly sophisticated, indicating greater planning, financing and organization. . . .

8. While the number of attacks remains high, increased naval patrols off the Horn of Africa and in the Gulf of Aden have effectively reduced the success rate of these attacks. In 2007, 63 per cent of attacks were successful; in 2008, 34 per cent were successful; in 2009, 21 per cent were successful; and the figure for 2010 is likely to be below 20 per cent.2 The decrease in success is attributable to the additional defensive measures put in place by merchant ships, their more cautious navigational routes, and effective naval operations. Nevertheless, as at 15 May 2010, some 450 mariners were being held hostage on vessels captured by pirates off the coast of Somalia. The involvement of naval vessels from more than 30 States represents one of the largest peacetime naval operations ever.”

In April of this year, the Security Council in resolution 1918 requested the Secretary-General to present a report exploring the options for prosecuting the persons responsible for piracy and armed robbery at sea off the coast of Somalia. In his report , the Secretary General has set out 7 options:

Option 1: The enhancement of United Nations assistance to build capacity of regional States to prosecute and imprison persons responsible for acts of piracy and armed robbery at sea off the coast of Somalia

Option 2: The establishment of a Somali court sitting in the territory of a third State in the region, either with or without United Nations participation

Option 3: The establishment of a special chamber within the national jurisdiction of a State or States in the region, without United Nations participation

Option 4: The establishment of a special chamber within the national jurisdiction of a State or States in the region, with United Nations participation

Option 5: The establishment of a regional tribunal on the basis of a multilateral agreement among regional States, with United Nations participation

Option 6: The establishment of an international tribunal on the basis of an agreement between a State in the region and the United Nations

Option 7: The establishment of an international tribunal by Security Council resolution under Chapter VII of the Charter of the United Nations

The Secretary General has dismissed as a viable option the extension of the jurisdiction of existing international courts to include prosecution of piracy. So proposals to allow the International Tribunal for the Law of the Sea, the International Criminal Court or the African Court of Human Rights to prosecute the crime of piracy have not been accepted by the Secretary General. However, it may well be that the option of allowing the African Court of Human Rights to prosecute pirates returns to the fore when the African Union discusses the extension of the jurisdiction of that Court to include prosecution of international crimes. That discussion, which is gathering steam, is primarily about attempts to create a regional African Court to prosecute ICC crimes but I would not be surprised to see piracy included in the jurisdiction of that Court, if the attempt succeeds.

The Secretary General’s Option 1 is already being pursued with the opening of a special anti-piracy court in Kenya. If there is sufficient assistance to States and  domestic courts to undertake these prosecutions it is not quite clear to me why an international (or even a regional) tribunal is needed, especially given the cost of establishing such tribunals. In the Security Council debate about the report, it appears that the UK and France were also not keen on establishing a new international tribunal.